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CAVC reverses BVA’s denial of specially adapted housing benefit

CAVC reverses BVA’s denial of specially adapted housing benefit

Facts of the Case

The Veteran served on active duty from May 1981 to May 1984. He was awarded service connection for the right foot in October 1984.  He was also granted service connection for his low back condition in 2002.  As his back pain was severe, the Veteran used a walking stick to get around, had difficulty standing for any length of time, and struggled at times to stand up from sitting.  Furthermore, the Veteran used a cane and had limited ability to use his arms due to radicular pain.  In 2006, the Veteran was awarded total disability based on individual unemployability (TDIU).  In October 2007, the Veteran submitted a claim for specially adapted housing. The Regional Office denied his claim in March 2008. He appealed this decision the following month.

Procedural History

The Board remanded the Veterans claims in July 2012 in order to obtain updated treatment records as well as a copy of his most recent VA examination. Entitlement to special home adaptation and specially adapted housing was again denied in January 2013. In March 2013, the Veteran was awarded service connection for radiculopathy of the bilateral lower extremities.  In May 2014, service connection for a urinary condition associated with degenerative disc disease of the lumbar spine was granted. The RO finally awarded the Veteran special monthly compensation (“SMC”) based on housebound status in May 2014.  The Board denied entitlement to specially adapted housing or a special home adaptation grant in its October 22, 2015 decision.

CCK Appeals the denial of specially adapted housing

CCK argued, and the Court agreed, that the Board used the wrong definition of loss of use.  In its decision, the Board found that the Veteran’s service-connected disabilities did not result in the loss of use of his lower extremities. As the correct standard for loss of use in the context of specially adapted housing is when the Veteran is precluded from locomotion without the regular and constant use of assistive devices, the Board’s reasoning was inadequate.  Because the Board explicitly or implicitly conceded that the Veteran met all the other requirements for eligibility for specially adapted housing, the Court reversed the Board’s decision to deny entitlement and remanded the matter for the Board to provide the Veteran with an appropriate benefit.

To read a copy of the Court’s decision, click here.

Category: Court Wins

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